Why is a Labor Certification Application (LCA) Required for some U.S. Work Visas?
United States employers have special regulations to which they must adhere. The Immigration Act of 1990 required that the United States Citizenship and Immigration Services (USCIS) and the Department of Labor (DOL) complete a Labor Condition Application, or an LCA. The purpose of the LCA is to ensure that the H-1B or E-3 visa holder is not working for significantly less than a U.S. citizen in the same or similar position. This is to keep wages at the level of what a U.S. citizen employee would collect, and means that hiring a foreign employee does not adversely affect U.S. workers by flooding the job market with workers who will work for less money.
By signing and submitting a completed LCA, the employer affirms that:
- noncitizens who are employed will not adversely affect the wages and working conditions of U.S. citizens working in similar jobs
- the noncitizen employee will be paid the higher of the actual wage or the prevailing wage for the occupation
- there is no labor dispute, strike, lockout, or work stoppage related to in the occupation or area of work
- the employer will notify other employees that an LCA is being filed at the time the application is signed
The LCA must be completed by U.S. employers who want to:
- submit a petition for a potential employee to obtain an H-1B or E-3 visa from USCIS.
- apply to extend the stay of a current employee with a vaild H-1B or E-3 visa
In 1998, immigration law changed and some new requirements were instituted regarding LCAs. These changes may not affect many U.S. employers however, because these requirements apply only to U.S. employers who are considered “H-1B dependent.” An “H-1B dependent employer” is one that:
- has 26-50 employees and employs more than 12 H-1B workers
- has over 50 employees and at least 15% of the workforce are H-1B workers.
- has 25 or fewer employees but employs more than seven H-1B workers
If the employer is H-1B dependent, it must comply with these requirements:
- swear under oath (attest) that during the period from 90 days before the H-1B petition is filed until 90 days after it has been filed that the U.S. employer has not and will not “displace” a U.S. worker in a similar position.
- must attest that it has taken “good faith steps” to recruit U.S. workers for the job. it is important that the U.S. employer confirm that they have offered the job to any U.S. worker who applied and was at qualified similarly to the the H-1B nonimmigrant.
The new requirements also apply to employers who have been found to have committed a willful failure or misrepresentation with regard to any attestation made on the LCA.
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What are the Exemptions to filing an LCA for a work visa?
An exempt worker is one who is paid at least $60,000 annually. Additionally, if the worker has obtained a master’s degree or higher in a field related to the future U.S. employment, he or she is also considered exempt. The new requirements are not applicable to employers H-1B workers when they are filing an LCA that covers “exempt” H-1B workers.
When do I Submit the LCA for my work visa?
It is important that you submit the LCA at the appropriate time. An LCA should not be submitted too early, and actually will not even be accepted by the Department of Labor (DOL) if it is sent to them more than six months before the employment commences. A prevailing wage determination from the State Employment Security Agency should be obtained by the employer, and they must submit the LCA within 90 days of the employment commencing. For more information on Prevailing Wage, please read our section here.
Is there a wage requirement when filing for an H-1B visa?
A “required wage” is determined by the DOL. The department has stated that the required wage must be either the actual wage or the prevailing wage, whichever is higher. If the employer's wage is below the required wage, the DOL will not certify the LCA.
Determining the Required Wage
In order to determine the required wage, the operating location must:
- classify the position,
- determine the actual wage for the position, and
- determine the prevailing wage for the position.
For more information, refer to the "Classifying the Position, Determining the Actual Wage" and "Determining the Prevailing Wage" sections below.
Is there a required wage for an extension of stay application with USCIS?
If an extension of stay is requested on a valid employment visa, then a new LCA must be submitted and certified. Without this, it is not possible to extend the stay of a currently employed visa holder. It is important to note that the wage figures must be updated along with the new request for extension of stay. The employee must receive a minimum of either the actual or updated prevailing wage, whichever is higher, for the remaining period of intended employment.
What are the penalties for not paying the prevailing wage on an LCA?
The U.S. employer is obligated to pay the required wage to employees. There are penalties if they fail to do this. The DOL has imposed penalties, including the liability for back pay in addition to a $1,000 fine for each instance the law was violated. A willful and knowing action by the employer in violating the required wage law is dealt with by the DOL in a much harsher manner. In such cases, the DOL will notify USCIS of the employer’s fraudulent acts and the employer may be barred from filing H petitions for a minimum of one year.
What Documentation is Required for an LCA with the Department of Labor?
DOL regulations and laws require that the U.S. employer provide documentation that they are adhering to the wage requirements. Accordingly, the operating location in the United States must provide documentation for each LCA that the employer filed. The employer must be able to show how they determined the prevailing and actual wage for each position in a particular occupation. The employer who filed the LCA should be able to reasonably prove or demonstrate the validity of each wage determination they make. An important part of the regulation requires that the employer update the documentation for each position or job whenever a new LCA is filed. This occurs when a position is offered again to a new employee or an employee seeks an extension of stay. The regulations also require that supporting documentation be updated every three years to prove that the prevailing wage rate is accurate when any new LCA is filed. Updates may be required sooner if the LCA expires before three years.
How is a position classified by the DOL?
In order for a position to be classified correctly, the U.S. employer should be able to provide a detailed job description for the position. The activities and training required should be reviewed and compared to the the occupational classifications found in the Department of Labor's Dictionary of Occupational Titles (DOT). The job description and DOT classification should be used to determine the correct position classification.
How is the “Actual Wage” determined for the LCA application?
The actual wage is the wage rate paid by the employer to all individuals with experience and qualifications similar to the visa holder's for the specific employment in question at the place of employment.
The actual wage is not the average of the wage rates paid to all workers employed in the occupation.
To determine the actual wage, the employer must first identify all other employees who are performing the actual set of duties and who have the same responsibilities the visa holder will have. Consideration should be given to the following factors: Consideration should be given to the following factors:
- length and type of work experience of other employees in the position to be occupied by the noncitizen, compared to the experience of the noncitizen,
- the similarity of job qualifications, educational background, and class rank,
- job responsibilities and actual duties,
- specialized knowledge in a specific area within the field
On occasion, there are other "legitimate business factors" that may be used to calculate or justify a different compensation level when there are substantially similar jobs. For example, there may be a professional distinction, or the employee may have special training or international acclaim. These would be completely acceptable considerations. It is imperative that the employer be able to state in detail what basis was used to determine the actual wage.
How is the “Prevailing Wage” determined for the LCA application?
The prevailing wage is generally considered to be the average, within five percent, of the wages paid to workers similarly employed in the area of intended employment. USCIS and DOL regulations require that the determination be based on the best information available. For more information on “Prevailing Wage,” please read our section here.
How long will it take for the DOL to process and approve my LCA?
DOL Regional offices will review LCAs for completeness within seven working days of their receipt and return one copy to the employer. Upon completion of the review, the DOL will return the LCA.
What do I need to submit to USCIS to obtain a work based visa?
If the DOL certifies the LCA, the employer must submit it with a petition for a nonimmigrant worker and other supporting documentation to USCIS for H-1B adjudication. For an E-3 visa, a copy should be sent to the noncitizen. They may then directly apply for the visa.
What happens if the DOL rejects my LCA?
If the DOL does not certify the LCA, the employer can revise it to address problems noted by the DOL and resubmit it.
For how long is my Labor Certification Application valid?
The labor condition application (LCA) is valid for the period of employment up to a maximum of three years.
If you have any additional questions, our experienced immigration attorneys would be more than welcome to help you. We provide a free consultation by phone or email.